But why might that be?
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It was necessary to ask: To what extent is the law addressing the real sources of conflict? What sort of law should properly be applied to twenty-first-century conflicts? Other changes, too, are under way, leading us to ask: Exactly who is the current subject in foreign affairs today?
Algeria - Humanity & Inclusion
And, in a concededly globalizing politics, what exactly might be the role of actors beyond the state? Large numbers of civilians were being affected by conflict, and accordingly, it was vital to examine the role of a human-centered not state-centered politics and law in the search for legitimacy. Compounded vulnerabilities speak to other identities, which in turn illuminated the extraordinary rise in ethnic conflict. This has created the context for a transformation in the relationship of law to violence in global politics.
The normative foundations of the international legal order have shifted from an emphasis on state security — that is, security as defined by borders, statehood, territory, and so on — to focus on human security: the security of persons and peoples. In an unstable and insecure world, the law of humanity — a framework that spans the law of war, international human rights law, and international criminal justice — reshapes the discourse of international relations. Consider once again the decision in Hamdan v. United States , in which the U.
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Supreme Court sought to avoid the potential morass of textual or source-based interpretation by simply assuming that the Geneva language meant that jurisdiction existed over the terror-related conflict, and therefore holding that Geneva Common Article 3 applied. This decision made possible a first line of protection of humanity rights.
Indeed, the invocation of humanity law here helped to illuminate one way to avoid an essentialized view of the apparent conflict between legal orders that was before the Court, regarding whether the law of war was to apply — and, instead, to reconcile that apparent conflict via an interpretation that was in keeping with humanity law values. Another body of interpretation that is relevant to humanity law, is the International Court of Justice ICJ case law surrounding the application of the Vienna Convention on Consular Relations, in situations where a suspect who is a foreign national faces charges for an offense that may carry the death penalty.
Private: Reshaping the Discourse of International Relations: An Excerpt from 'Humanity's Law'
In the last decade, domestic and international courts have become enmeshed in issues concerning life and death — issues that are situated between the procedural and the normative; between politics and doctrine; between the international and the domestic; and between the individual and the state. In the U.
Supreme Court case Medellin v. Dretke , a Mexican national sentenced to death in US state courts claimed that his consular rights had been denied.
The Court addressed the question whether the Vienna Convention on Consular Relations gave rise to immediate duties and remedies that could be directly invoked by individuals. Put another way, the Court addressed the question whether the Convention conferred justiciable rights. Yet another issue raised was the relationship of ICJ interpretation to domestic court interpretation of the Vienna Convention on Consular Relations.
Here, one might conceive of the challenge as that of horizontal dialogue between domestic and international courts and tribunals, wherever humanity-based normativity is at stake. This Article proposes that international law is undergoing a paradigm shift, which will have significant implications for foreign affairs.
A dramatic expansion of legal machinery, institutions, and processes is occurring in the international sphere. Now, more than ever before foreign policy decision-making occurs in the shadow of the law. The conception of a new rule of law is at stake; appropriate to the present state of global politics, as it aims to manage heightened political conflict and violence through law.
Back to the future
The impact of the juridical paradigm shift is primarily discursive. The expanded legal discourse represented by the present international human rights system contributes a rhetoric that both enables and constrains politics; but whose constructive potential is not infinitely malleable. Understanding this paradigm shift requires new interpretive principles, which is the larger project for which this Article lays the foundation.
Teitel, Ruti G. Law Commons.